Tag: Consumer Credit Act 1974

Rob Sams is a contributor to Legal Beagles, a forum for people who require assistance or an understanding of their legal rights. He particularly answers questions on the Consumer Rights Act as well as queries on voluntary termination rights under car finance agreements. He has kindly agreed to produce this post on different ways of financing a car and what to do if it all goes wrong!

Everything you need to know about financing your car purchase
Over the last few years, reports have shown that a large proportion of cars are mainly financed as opposed to buying outright. With a number of finance options available depending on the buyer’s needs, this article provides a short explanation of the various finance deals as well as your rights if something goes wrong.

What finance options are available?Hire Purchase: a HP agreement is a type of agreement which the car is hired to you over a fixed period of time. At the end of that fixed period you have the option to purchase the car (though you are not under an obligation to do so) or return it back to the lender.

Conditional sale: a conditional sale is almost identical to a hire purchase agreement except for one difference. under a hire purchase, you have the option to purchase the car at the end of the agreement whereas a conditional sale obliges you to purchase the car and make the final payment.

Personal contract purchase (PCP): similar to conditional sale and hire purchase agreements, PCP agreements tend to have lower monthly instalments because they only cover the depreciation over the term of the agreement, leaving a much larger balloon payment at the end. PCP agreements are becoming increasingly popular with consumers.

Personal Contract Hire (PCH): a PCH agreement is essentially a hire agreement over a long period of time, returning it at the end of the agreed term. One thing to note is that there are strict limits on the mileage you can do, and if you go over, you may get stung. Be sure you estimate your annual mileage correctly but as a guide, the average number of miles is around 10-12k per year.

Fixed Sum Loan: Fixed sum loan agreements are simply personal loans that you would usually obtain from your bank however the loan can only be used for the purchase of the car. Ownership of the car will immediately pass to you on entering into the agreement and you repay the monthly instalments in accordance with the terms. Some finance companies such as Santander and FCA Automotive Services (a subsidiary of Fiat who offer loans) offer fixed sum loan of agreements.

There’s a problem with my car, what can I do about it?
Contrary to popular belief, whenever something is wrong with your car, it is not the responsibility of the dealership but the lender because there are two transactions that take place. First, the lender will purchase the car from the dealership and second, the lender will then enter into an agreement with you to hire or purchase the car. Whilst it may seem practical to approach the dealership first, they are not under any obligation to repair the car on your request, though there is no harm in speaking to the dealer first.

If you notice a fault, defect or the car was not described then you may have certain rights against the lender under the Consumer Rights Act 2015 (CRA). The lender must ensure that the car is of:Satisfactory quality: the lender is obliged to make sure that the car is in a roadworthy condition at the time of entering into the agreement and isFit for purpose: If you made it known to the dealer that you wanted to use the car for a specific purpose or that it must be able to do specific things, and the dealer confirms that it is suitable for those needs, but subsequently turns out to be false, the car would not be fit for its intended purpose.

Wherever possible it is always best to get things in writing so that you create a paper trail of what has been discussed in the event you need to escalate the matter. It may also be helpful to bring another person with you who can back up your story at a later date.

Complaining to the lender
If you haven’t been able to resolve the matter informally, then your next step is to write a formal complaint to the lender, setting out the problems you have experienced, why it is still not resolved and what needs to be done to resolve the issue. There are several options you have under the CRA:

Short term rejection: If the car is faulty within the first 30 days then you have the right to reject the car and immediately terminate the agreement, although you need to prove that the fault existed on the first day. This can be done by obtaining an independent report confirming the faults. Where you exercise the short-term rejection, the agreement is terminated and you are entitled to the total sums paid to date.

Repair or replace: You may choose the option of having the car repaired or replaced, but if one is disproportionate to the other then the lender can opt for the alternative. The lender must repair or replace within a reasonable time without causing significant inconvenience as well as covering any costs incurred.

Final right to reject: This remedy is only available after 30 days if the repair or replacement fails to resolve the issue or it was not carried out within a reasonable time. The difference between this option and the short-term rejection is that the lender can deduct a sum of costs for usage where the final right to reject is exercised. An alternative remedy is to keep the car but require a price reduction either by future payments or a proportionate refund of what has been paid already.

Complaining to the Financial Ombudsman
Most complaints tend to be resolved with lenders without any further action. However, if it is still not resolved, then you can bring the matter to the Financial Ombudsman Service (FOS). The FOS will investigate your complaint and review the evidence from both sides, taking into account any relevant law but also what is fair and reasonable (they are not obliged to follow the law). Once the adjudicator has reviewed all evidence, they will contact you with an initial decision and explain their reasons.

If you do not agree with initial decision, you can ask an Ombudsman to review the matter and provide a final decision. If the Ombudsman does not find in favour of you, the decision is not legally binding and you do not have to accept it (you could take further action by bringing legal proceedings in the Small Claims Court). However, if you accept their decision then it becomes legally binding on both parties and there is no further recourse.

Other rights: voluntary termination
Another common right for consumers who enter into car finance agreements is voluntary termination. If you have a HP, PCP or Conditional Sale Agreement and you are struggling to keep up with the repayments, the Consumer Credit Act 1974 allows you to terminate the agreement which limits your liability to 50% of the total amount payable. It goes without saying that, before entering into an agreement you should always make sure you can afford the monthly repayments. Provided you have taken reasonable care of the goods and paid any overdue instalments then you will have nothing more to pay.

You do not necessarily need to have paid 50% of the total amount payable as you can terminate at any time by giving notice in writing. However, if you have underpaid, the lender is entitled to the remaining balance which makes up the 50% and this option is not available where the lender has terminated the agreement first. You should note however, that once you have given notice to terminate the agreement, the notice cannot be revoked.

If you have a problem with an item you have bought or service you have received you can contact your credit card company. You may want to do this for example when the company has gone bust, is refusing to give you a refund or does not respond to communications from you. You have a right to be refunded if you make a claim within 6 years (5 in Scotland) using Section 75A of the Consumer Credit Act 1974.

Purchases over £100 and less than £30,000 are covered. You are covered if you pay as little as 1p but the item costs more than £100.

In 2007, a ruling by the House of Lords defined that Section 75 has no territorial limitations, therefore, cardholders who use their credit cards to make purchases abroad are protected in the same way as in the UK. So, purchases made on a credit card may also be covered under Section 75 when; goods or services are purchased from a foreign supplier whilst the cardholder is abroad, purchased from a foreign supplier for delivery to the UK, or purchased from a foreign supplier or agent who is temporarily in the UK.

Completing a credit card transaction through a third party payment service means that the credit card provider and the seller are no longer in a direct relationship so are not equally liable. This applies therefore to services such as PayPal, Amazon Marketplace, Worldpay and Google Checkout.

In the UK, where you are entitled to specific statutory protections the credit card company is a second party to the purchase and is therefore equally liable in law if the other party defaults or goes into liquidation. However under Section 75 Consumer Credit Act 1979, the purchaser loses this legal protection if the card payment is processed via PayPal.

Chargeback
Purchases bought on debit cards and below £100 are not covered by the Section 75 of the Consumer Credit Act 1974. Chargeback, although not part of any act of law, is a voluntary scheme based on scheme rules set by card issuers such as Mastercard and Visa. Because it isn’t set in law you should use the Consumer Credit Act 1974 where possible, otherwise Chargeback can be applied for similar situations.

You will need to make the request within 120 days of the transaction date. Bear in mind that this scheme is much less well known than the Section 75 rule and so many staff might not know of it if you ring the bank. My advice therefore would always be to write.

If the bank/credit card company rejects your claim and/or you are unhappy with the process you can take the matter to the Financial Ombudsman but not to court.

For help in complaining when you can’t use this cover see Tips for complaining.

A friend booked a hotel through Booking.com but hit a problem when the site didn’t accept the credit card. Told to go direct to the hotel (based in Germany) to pay he was horrified to find that he had been charged a 7% credit card fee! In steps The Complaining Cow.

What do you do when booking through a site such as Booking.com that looks like they are the travel agent? (Slightly easier to complain when it is the travel agent at fault see an example here.) Well this actually isn’t the case, it isn’t a travel agent and so your cover isn’t quite what you might think it would be. In addition, Booking.com is actually based in the Netherlands and the terms and conditions state that “To the extent permitted by law, these terms and conditions and the provision of our services shall be governed by and construed in accordance with Dutch law and any dispute arising out of these general terms and conditions and our services shall exclusively be submitted to the competent courts in Amsterdam, the Netherlands.” I would have argued that you pay through booking.com and therefore contract is with them, however according to their set up this isn’t the case. They work only as advertiser in reality. They take no responsibility for accuracy of costs etc. and they aren’t based in the UK so we couldn’t use UK law. However… there is EU law. So this is what I wrote for him.

(Remember if this happens to you, you can cancel the booking as you do have the 14 days to cancel but here they wanted to keep the booking.) You could also claim back through the section 75 of Consumer Credit Act 1974 and of course go to court but that would be in Germany!

So, using www.ceoemail.com to get the CEO’s email address for booking.com off went this email from Paul…

On the 28th August 2015 I booked the Langwasser Messe Nichtraucherhotel. However I received an email from Booking.com to say that the credit card could not be submitted. I also received an email directly from the hotel to say that I should pay directly with them as they could not directly verify the card owner. I find this ludicrous given that there is no problem with the account and the card is used on a regular basis.

Once I went through the necessary hoops for the hotel (see attached correspondence) I was then sent an “invoice”. This was not an invoice but a receipt. I found that I had been charged an extortionate fee of roughly £140 to use the credit card.

This is not acceptable. I was not informed by Booking.com or the hotel that I would incur this charge. I note that you are based in the Netherlands and therefore EU law applies. The Consumer Rights Directive 2013 states the need for a trader to ensure that the customer understands what is included in the contract and with no hidden costs. This is clearly not the case. The email from Booking.com stated that I need to provide the credit card details and that the hotel would process the payment. The email from Booking.com clearly led me to believe that my contract was still with Booking.com but the hotel would be processing it only. The “invoice” which I received after payment shows the credit card charge of 7%. Had the booking gone through normally there would have been no charge. Requesting that I go a different route breached the Consumer Rights Directive.

In addition to this breach, this directive also states that the trader cannot charge consumers fees that exceed the costs borne by the trader. 7% is clearly in excess of this cost.

I understand from your terms and conditions that my contract is with the hotel. However, the site appears, in the way it works to be the company with whom the consumer has a contract. The emails sent by Booking.com contributed to my taking this transaction without the full correct information given that the first email stated the price with no transaction fee and the second said to proceed a different route, I would have no reason to imagine that there would be any further costs. I believe that this is a breach of the EU Directive 2005/29/EC.

I am really quite appalled by the service I have received by Booking.com and trust that you will look into this matter at your earliest possible convenience. As a business we frequently book hotels through Booking.com, however, given this latest experience I am unsure that we will book again and will be sharing my experiences with colleagues and clients. I trust that you will go some way to assuring me that I will not receive such poor treatment again should I use you in the future.

I look forward to hearing from you regarding this fee and a sum for the inconvenience. Should I not be fully satisfied with your response I will not hesitate in taking the matter further which may include but not be limited to claiming through my credit card, taking the matter through the Dutch courts, and sharing through various media and social media outlets.

For good measure we also emailed the CEO of the hotel with a similar email.